The ADA and the ADAAA: The Changing Face of Disability Law in the Workplace

The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. To summarize, the ADA prevents discrimination against qualified employees, or applicants, on the basis of a qualifying physical or mental disability, and requires employers to provide reasonable accommodations to such individuals to assist them in carrying out the essential functions of their jobs. In very basic terms, the ADA provides that employers cannot treat disabled persons differently—either intentionally or unintentionally. 

The ADA was recently significantly amended by the Americans with Disabilities Amendments Act (the ADAAA), which went into effect January 1, 2009. According to the Equal Employment Opportunity Web site, although the definition of a ‘disability’—which is an “impairment that substantially limits one or more major life activities”—didn’t change, the amendments did change the interpretation of the statutory terms. These changes in interpretation, in turn, greatly impact how employers should now address and deal with disability-related issues and requests for accommodation in the workplace.   

Highlights of the ADAAA and how it most likely will and may affect employers include, but are not limited to: 

• More people will be covered under ADA than in the past—With regard to what actually constitutes a disability under the ADA, the ADAAA has expanded the definition of “major life activity,” and has also lowered the “substantially limits” threshold. Plaintiffs will no longer have to show they are “severely” restricted in performing a “major life activity;” rather, general activities to be considered are the nature and severity of the impairment, along with duration/expected duration of the impairment and whether the impairment will result, or has resulted in, a permanent or long-term impact on the individual. Also, the definition of disability no longer takes into account mitigating measures.   
• The focus will no longer be whether an employee has a disability—Because of the expansion of what constitutes a covered “disability,” employers should, moving forward, focus on the definitions and communication of employees’ essential job functions; providing reasonable accommodations where feasible and required by law and documenting situations where accommodations would constitute an undue burden. 
• Approval of unpaid leave of absences may increase—If you are not required to provide time off under the Family and Medical Leave Act (FMLA), you may be required to provide an unpaid leave-of-absence if a leave could improve an employee’s ability to perform their essential job duties (i.e. constitute “reasonable accommodation” of the employee). If you are required to provide FMLA, and an employee is unable to return to work after FMLA has been exhausted, you may be required to grant additional time-off under the ADA. 
• Attorneys are predicting an increase in ADA litigation—As a result of the changes, employers will be challenged and there will no doubt be an increase in cases. It will be much more difficult, if not impossible, to defeat a claim of disability discrimination through technical defenses. Additionally, employer-initiated attention to impairments and accommodations may support certain “regarded as” claims. The best practice is not to make a snap decision as to whether or how to apply the ADA and the ADAAA, but rather to seek guidance from an HR professional and/or an employment attorney. 
• The ADAAA is not applied retroactively, and the new law is in effect only as to job-related decisions made on or after the effective date of the ADAAA—Employers should expect, however, to see court cases coming down over the next months addressing this position and applying the new mandates contained in the ADAAA. Importantly, based on the ADAAA, it will most certainly be difficult for employers to prove that providing time-off to an employee constitutes a burden. Employers will need to demonstrate the harm in granting time-off and will be required to demonstrate specific details (i.e., complete a report addressing several factors).  

For more information on the ADA and the ADAAA, visit the Equal Employment Opportunity Web site. 

The ADA was recently significantly amended by the Americans with Disabilities Amendments Act (the ADAAA), which went into effect January 1, 2009.